The House of Representatives has opened an impeachment inquiry concerning President Donald Trump. Impeachment in the House is the first of two steps in removing a president for cause; the second step is trial in the Senate.
The Constitutional grounds for impeachment are “Treason, Bribery, or other High Crimes and Misdemeanors”. Treason and bribery are well defined, so most discussions on whether the president’s conduct meets the requirements for impeachment (a different question from whether it is deserved or should occur) focus on the phrase “high crimes and misdemeanors.”
In the current political environment, interpretations somewhat reverse the usual approach to Constitutional interpretation. Republicans, normally advocates of “original intent,” espouse an approach that requires committing a serious defined crime.
Democrats are comfortable with accepting that the Founding Fathers at the Constitutional Convention were aware of the established meaning of the phrase in England, and thus move into the “original intent” position.
The English historical meaning can be viewed as emphasizing the word “high,” not in the sense of “serious,” but rather as denoting the type of crime that only persons of “high office” could commit. It recognized the special responsibilities of office holders, much as the Military Code of Justice recognizes special responsibilities of military officers, above those of ordinary citizens.
Abuse of power would be the clearest example of conduct within this “original intent” approach. Almost any serious violation of the oath of office would suffice as an impeachable offense, whether or not in violation of a specific law; analogies are made to breach of fiduciary duty.
Some writers have argued that lying to the public except when necessary for national security constitutes impeachable conduct under this approach, an example which demonstrates the potential for overreach.
Under the current Republican view, abuse of presidential power, since there is no specific law making that a federal crime, would not suffice. The emphasis in this interpretation is on the word “crime,” so the phrase demands a breach of a specified serious law.
This interpretation was offered, successfully, in the Senate impeachment trial of President Andrew Johnson by former Supreme Court Justice Benjamin Curtis (he resigned after writing his dissent in the Dred Scott decision), who as Johnson’s attorney argued on one count that Johnson’s vituperative speeches, essentially accusing the Republican Congress of being illegitimate (strikingly similar to President Trump’s current attacks on Schiff, Pelosi and the Democratic Party) were not impeachable, since no law of the United States made such political attacks a crime.
The president and vice president are the only elected federal officers subject to impeachment, since members of Congress are instead subject to removal by their own House instead.
If an impeachment inquiry focuses on a power unique to the president, such as use of pardons, impoundment of money authorized by Congress, unequal execution of laws for political reasons, or using the Executive’s control of foreign relations to coerce foreign help in an election, the “pre-existing crime” view would have required Congress to have enacted laws which only a president could violate.
Under existing Department of Justice policy, a president is not subject to criminal prosecution while in office (the president has enlarged this recently to contend he is not subject even to investigation for crime).
Clearly, a president could argue that such Congressional criminal enactments were void, since a president is subject only to impeachment! This approach virtually insulates a president from impeachment except for treason, bribery, or violation of laws generally applicable (such as perjury or obstruction of justice), and is not consistent with the history, in this country or England, of impeachment.
In the end, perhaps then-Rep. Gerald Ford was correct as a practical matter when he interpreted the “high crimes and misdemeanors” phrase as whatever 67 senators (the number needed to convict) said it meant.
However, given the danger to our democracy posed by a would-be dictator, the Founding Fathers were undoubtedly sage to provide a mechanism for removal of a president before the next election cycle.
The grounds we as a nation choose to adopt as sufficient for impeachment should be less influenced by the behavior we may currently find abhorrent, than by what in the future will protect the democratic election process while also protecting the nation and the Constitution.
Jed Somit is a resident of Kapaa.